Legal Linguistics - unizg.hr

Legal Linguistics - unizg.hr

Lelija Soanac, School of Law, Zagreb, Croatia Legal Preview Law and legal systems Legal communication: the pursuit of precision Language and power Telling the story: narratives in the courtroom

Communication problems in the legal system Language and disadvantage before the law Legal translation and court interpreting Law on language Linguistic evidence: forensic linguistics About law Law provides a framework within which we manage our daily lives, including our family, housing, transport, study and work

Law represents a societys value system, imposes rights and obligations, proscribes and punishes behaviour that goes against a societys norms; such values are not universal Law a system of rules imposed by the state and enforced by courts Legal systems Major elements of modern legal systems: 1) Legislation: Parliament

2) Judiciary: a court system 3) The police Types of law Law - national (municipal) - international National law Public (involves the State or government)

Private (disputes between private individuals or businesses) Public law Civil (administrative, constitutional, tax law) Criminal Major legal systems of the world Traditional law

Civil law Common law Islamic law Hindu law Chinese law Customary (traditional) law Law developed long before writing as part of the regulatory system of societies Such oral legal systems predecessors of all modern

legal systems Customary law local and fragmented Civil law based on Roman law the most important codification: Justinians code (Corpus iuris civilis) adopted by European lawyers, providing ius comune the common law of Europe written in Latin the emergence of nation-states national codes of law (e.g. Napoleonic Code)

Inquisitorial procedure (judges question witnesses and examine evidence; much of the evidence in the written form; judges base their decisions on written evidence and a summary prepared by a court official) Common law (AngloAmerican law) Developed after the Norman Conquest (1066) a centralized system of courts (Royal Courts of Justice); legal languages: Latin and French Based on judicial decisions which are binding for

future similar cases (precedents) Adversarial procedure: a ritualized battle between the prosecution and the defence, trying to prove conflicting cases to the jury Courtroom proceedings depend predominantly upon oral rather than written evidence (witnesses are subject to oral examination in court) Shariah law (the Islamic law) Based on Quran, supplemented by Islamic scholarship

In many Islamic societies not the only system of law some have versions of common law or civil law, sometimes with parallel system of Islamic courts which handle family law and moral issues In other states, the criminal law is a form of Shariah, while contract law has been adapted from Roman law Law and language Law an overwhelmingly linguistic institution Laws coded in language and legal concepts are

accessible only through language Court cases and police interviews take place through language Contracts which regulate relationships between partners, employers and providers of goods and services Legal communication Non-verbal semiotic systems Linguistic systems

Both systems used to negotiate meaning Linguistic levels: meaning Pronunciation or writing (grapho-phonic level: letters, gaps between words, punctuation, capitalization; layout of the page: paragraphs, headings etc) Morphology: content morphemes, function morphemes Syntax: productivity, compositionality, recursion (coordination, embedding) Semantics

Pragmatics (context; immediate (situational), wider (social) Discourse (coherence, cohesion, genre discourse type) Sociolinguistics (register, variation) Meaning 1) propositional meaning, 2)social/interpersonal meaning and 3) functional meaning (speech acts) Negotiating meaning involves a construal (interpretation) of the social and physical world which

is pragmatically related to socio-cultural and physical context Meaning Another aspect is the world-view/knowledge of the participants in the communication, including their 1) social schemas and 2) physical world schemas, i.e. their pre-existing shared and different understandings of social and material worlds;

an important part of this knowledge consists of communicative ability Model of communication: conveying meaning Context: 1) immediate and wider 2) Sociocultural and material

Schemas: Sociocultural world Material world Communication systems Verbal Non-vebal

Meaning Conceptual Interperso nal functional Legal linguistics/Forensic linguistics Linguistique juridique (jurilinguistique) Rechtslinguistics

Juryslingwistyka (Polish) Pravovaia lingvistika (Russian) Legal linguistics 1. The study of the language of the law, including the language of legal documents and the language of courts 2. The study, the provision and improvement of professional legal interpreting and translation services 3. The alleviation of disadvantage produced by language in the legal process

4. The provision of forensic linguistic evidence based on the best available linguistic expertise 5. The provision of linguistic expertise in issues of legal drafting and interpretation, including plain language drafting Language and the Law Legal language 1) written: legislation, judgments, contracts, wills 2) spoken: language of the courtroom, police investigations, consultations between lawyers and

their clients The move into literacy The process of codification involved the language of the law moving from largely interactive oral disputes, which operated with language drawn from everyday speech, to a specialized technical style of language, using a full range of resources offered by writing Written texts better planned and less dependent on the context; a continuum from least planned and

highly contextualized to most planned and context reduced Consequences of planning Increased explicitness in the logical structure Increased syntactic complexity A high level of autonomy of legal texts (drafting and interpretation of legislation): plain meaning rule (textualism) Emotionally neutral and impersonal tone; more

passives Standardizing legal functions The development of literacy ability to standardize Standardized ways of performing legal functions, e.g. drawing up a will Standardization of the steps through which a legal function must pass for its completion development of standard legal genres Creating a legal register: development, recording and

long-term use and standardization of legal terms Effects of standardization In law, if a form of words is admitted as adequately meeting a particular legal objective, e.g. a particular wording is accepted in court as constituting a binding promise, this is good reason to reuse the wording for subsequest promises Once legal actions are committed to paper, they can be consulted and relevant elements reproduced

Form Books provide tried and tested forms of words, which lawyers can piece together to construct operative documents Effects of standardization Standard ways of constructing legal operative documents, e.g. a will Development of standard legal genres Consistency and conservatism Persistance of archaic language

Written legal texts Operative documents create or modify legal relations: legislation acts, orders, statutes), judgments and private documents (contracts, wills) Expository documents explain the law (a letter to a client, office memorandum, textbooks) Persuasive documents submissions designed to persuade the court

Legal transcription the Interaction of Written and Spoken Language The move into writing not just a historical phenomenon Most record keeping in legal settings written, while most proceedings in common law systems spoken It is common for spoken language to be transcribed, i.e. transformed into written language A transcript involves the conversion of spoken into written language: impossible to accurately record all

sound details of speech (pitch/intonation, voice quality, accent, pauses, pace) Legal transcription Typed police records of interviews Court records Most transcripts heavily weighed towards readability at the expense of accuracy Transforming speech into a readable written form can involve radical change

The recording of speech on audio and video tape, digital recordings: post-literate communication Written language: the Pursuit of Precision Decontextualization legal texts should be made clear and explicit using the internal resources of the text itself The need for legal documents to be as precise as possible

Precision not necessarily extreme clarity it may involve some vagueness or flexibility A main issue in legal interpretation the fit between an operative document and a particular case The Pursuit of Precision The combination of decontextualization and the attempt to communicate no more and no less than the intended meaning requires that legal texts seek to be completely internally explicit and unambiguous

Precision legal terms The technical meaning of words in the Common Law system has often stablized and clarified through years of interpretation and precedent However, it is necessary to distinguish between legal terms which are more accurate or more efficient when referring to legal concepts from in-group language used by lawyers for interpersonal motives (legal jargon)

Legal Lexicon in Common Law Use of archaic textual deictics (forthwith, hereafter, herein, thereafter) Words of Latin (habeas corpus, obiter dicta, ratio decidendi) or Norman French origin (estoppel, judge, parole, venue) Terms from different languages which originally referred to the same concept, such as child (OE),

infant (L/F) and minor (L) permit the functional specialization of the terms different spread of age in this example Doublets (binomials) and triplets: will (OE) and testament (L/F); give (OE) devise (F) and bequeath Legal Lexicon Abbreviatons (UN) Proper names (Anton Piller injunction order which allowed the police to enter premises in civil cases;

Miranda warning caution, i.e. the right to silence in the U.S.) Problems of polysemy Ordinary words with special meanings dangerously misleading (e.g. consideration) Definitions Legal Drafting and interpretation 1) The same meaning the same form principle (e.g. if

the nouns shadow and shade are used in an operative document, they would be expected to refer to different phenomena, rather than being stylistic variants Canons of construction Eiusdem generis when a general term follows a list of particular terms, the general term only applies to things similar to the particular terms. For example, in the list "sun, moon, and other large objects", the phrase "other large objects" only includes celestial bodies, not houses and elephants

Expressio unius est exclusio alterius:when a legal document includes a list, anything not in that list is assumed to be purposely excluded Noscitur a sociis - the meaning of a doubtful word can be derived from its association with other words words should be interpreted according to the linguistic and textual context in which they occur Sentence structure Placing modifiers next to the element they are

modifying The linguistic scope (p. 57) Extreme syntactic complexity (coordination, embedding) Logical structure of the kind: if X, then Z shall (not) do/ be Y Speech Acts Speech Acts sometimes referred to as functions Locution, illocution, perlocution

Performatives, constatives Performatives important in understanding operative documents Hereby used in legal language to make it explicit that a speech act is being performed: I hereby promise to pay; Speech Acts Explicit marking of a speech act noticeable in the enacting formulae at the beginning of legislation

UK Be it enacted by the Queen s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows Legal Discourse Genres Reference

Reference Pronouns: in operative documents pronouns are avoided (pursuit of precision, avoidance of ambiguity): repetition Defined pro-forms (referential indices): setting up special meanings for words and expressions by means of definitions, so that these words can be used throughout the text Core noun with deictic (e.g. the terms so varied refers

back to those terms have been varied under section 17 terms is a core noun, and so varied is used as a deictic expression to copy varied under section 17. Interpretation 1) Textual semantics examining the wording of an operative document at word, phrase, or sentence level; words and grammar are not given their everyday construction, but one based on legal traditions 2) The legislators intentions (difficult to determine if not

made explicit in the wording of the statute) 3) applying societal standards (judges apply their own moral standards when reaching their decisions, even though they may be masked; judges prefer to write their judgements using basis of interpretation (1), when they are actually often making moral judgements, using basis (3) Knowledge Issues Knowledge differences between lawyers and nonlawyers Lawyers operating within a different conceptual and

discoursal frame they construct, discuss and present events in a way that differs from, and may be unintelligible to non-lawyers In a courtroom, this may result in a failure of communication with jurors Through the centuries, lawyers have evolved their own way of reasoning The Pursuit of Precision A significant driving force in the drafting and

interpretation of legal documents Their complexity a reflection of the purpose of such documents: to define and control human behaviour in an unambiguous way When the pursuit of precision combines with extreme conservatism and archaism, the result may be language that is at best complex, and at worst arcane and unintelligible to non-lawyers Communication Difficulties in the

Legal System Ignorance of the law is no defence If the law is presented in a language that cannot be understood by the people to whom it applies, this can lead to grave injustice More intelligible legal language would help nonlawyers to understand and appreciate the way the legal system works, to understand basic legal concepts, to understand and protect their rights, and to understand and participate more meaningfully in legal proceedings

The incomprehensibility of legal language: sources of difficulty Linguistic features: distance from context, technical elements of legal language, the use of interpersonal power Passives without an agent; extremely long and complex sentences; nominalization: the density of information increases comprehension difficulty, as well as syntactic complexity Archaisms, loanwords, doublets and triplets The grammar of operative documents follows different rules

from everyday language, which creates a likelihood of miscommunication Double or multiple negatives Conceptual frame: lack of shared knowledge Communication Difficulties in the Legal System Sources of communication difficulties: 1) non-lawyers cannot understand the language of the law

2) lawyers cannot understand the language of people who do not speak the standard language of the legal system Plain Language Movement Lord Wolfs reforms(1998) Plaintiff> claimant Pleading > statement of case In camera > in private Anton Piller order > search order

Jury instructions A tension between the language appropriate to the lay jury audience, and the language appropriate to the specialist legal audience two audience dilemma Written language presented in oral form communication breakdown Lack of a shared conceptual frame Jurors do not understand a large portion of the judicial instructions delivered to them; emphasis on legal

accuracy with minimal attention paid to comprehensibility Jury instructions Notions that jurors are likely to misunderstand: Reasonable doubt Presumption of innocence Burden of proof Language and Power

The justice system the most powerful institution in societies based on the rule of law Language an important manifestation of power Much of the power in law manifestation of organizational hierarchy Legal power purports to be impersonal (people in the courtroom often referred to by their role: defendant, witness; frequent use of passive voice) Legal register: hierarchical, authoritarian, monologic and alien use of language

Non-verbal communication Imposing court buildings Judicial robes, wigs and gowns Another marker of power all must be on their feet when the judge or jury enter or leave (All rise!); people leaving or entering the court will usually bow to the judge Rules of interaction

Lawyer client Trials politeness and formality (e.g. You may approach the bench); inquisitorial (written), adversarial (oral) evidence Police treatment of prisoners constrained by legislation and by rules of procedure; the right to silence; police interviews should be as open and noncoercive as possible Primary and secondary realities

Courtroom discourse: 1) the primary courtroom reality: the courtroom itself and the people present 2) the secondary reality: the events that are subject to litigation The secondary reality is projected through the primary reality Adress forms in the courtroom

Your Honour, Your Lordship In the 2nd person, counsel may address or refer to each other as my friend or my learned friend and may also refer to each other in the third person as the Crown, Counsel for the Prosecution or Counsel for the Defence Names are rarely used since the persons courtroom identity is seen as their primary identity Judges and other lawyers often referred to as learned

Police Organized along essentially military lines, with ranks such as senior constable, sergeant, inspector, etc. Ranks a direct manifestation of hierarchical power relations Ranks can be used as forms of address face-to-face (Yes, sergeant) Linguistic attributes of power Loudness and variation in loudness

A larger pitch range (i.e. varied intonation) Repetition Silent pauses rather than filled pauses (um, er) Interrupting Not using expressions of agreement Fluency coherence Speech attributes of powerlessness

Hedges (sort of, kind of, you know) Hesitation Uncertainty Use of sir/maam Intensifiers (very, definitely, surely) Time taken (powerless take longer time to say the same things) Mitigation (would you mind if, sorry to trouble you) Linguistic indicators of power

Powerful speakers more likely to dominate discourse Less powerful speakers less convincing as witnesses Overall: People who are less powerful in society may reflect their status in their speech behaviour and be less convincing as witnesses or defendants Coherence and cohesion Testimony narrative account of events; often interrupted by lawyers questions In the fragmented question narrative it is the lawyer

who is in control of the discourse, constraining what the witness can say and deciding the organization and ordering of the account If a story is presented in this fragmented way, it might be less convincing, and jurors might associate the witnesss lack of control with a lack of competence and power Turn-taking In the courtroom, the most powerful person the

judge can speak and interrupt at will, so judges can take a turn whenever they wish The least powerful people observers can be punished, even imprisoned for contempt of court if they speak at all or even laugh Witnesses are given a turn, but they have little control over when they speak and what they say Counsel frequently interrupt witnesses, but witnesses should not interrupt counsel

Turn-taking Counsel are given many more turns at talk, but these are constrained: 1) during questioning of witnesses, the counsel who called the witness asks questions (examination-in-chief), then 2) the opposing counsel may ask questions (crossexamination), 3) then the counsel who called the witness can ask follow-up questions (re-examination) Counsel may interrupt each other according to strict rules of procedure, for instance to raise an objection, but they do not

interrupt the judge Turn-taking In police interviews control of the interview rests with the interviewing officer who has control of topic and turns Questioning Objectives: 1) to elicit information

2) to obtain confirmation of a particular version of events that the questioner has in mind (coercive interrogation to obtain confessions; often leading to miscarriages of justice) Coercion in questioning The form in which a question is put exerts a strong influence on the quality of the answer Frailty of memory: witnesses memory and testimony can easily be influenced by a questioner

for lawyers, the focus of attention to question forms is on how to control witnesses; a common strategy with hostile witnesses to confuse, upset, or otherwise intimidate in order to discredit their testimony or to bring into question their personal credibility Control of the person (credibility) and control of the information (testimony) Coercion in questioning Where there is an imbalance in power relationship

between the speakers, the more powerful speaker not only gives more directives, but asks more questions; the less powerful speaker is expected to give more answers Powerful people (lawyers, police) can manipulate people more readily; they can persuade others, change attitudes, and influence behaviour of others in many ways Politeness

In normal discourse there are preferred responses (e.g. a preferred response to an invitation is acceptance rather than a refusal) Responses in the courtroom or in police stations may be influenced by this: e.g. the preferred response to an evaluation is agreement rather than disagreement In this case, politeness can serve as a mechanism for coercion Examining questions

Tag questions put a degree of pressure for agreement upon the interlocutor; more coercive than yes/no questions Questioners power over the interlocutor and the latters obligation to comply The more information included in the question, the greater the questioners control of the information Open questions should be encouraged It is necessary to check if a suspect has understood the question

Presuppositions Potential to confuse witnesses and mislead hearers by inserting as given content something that is new or disputed Questions presupposing the presence of items or events (Did you see the broken glass? elicit different responses from those that did not make the presupposition (Did you see any broken glass?)

Telling the story: Genre Procedures in the primary reality of courtrooms, lawyers chambers, prisons and police stations may be a staged process, and therefore describable as genres Genre - important both for the construction and the comprehension of discourse Genres prototypes underlying models that are sometimes not followed or are intentionally modified Genre structures constantly evolving

Legal Genres Codified legal genres: Legislation Regulation, by-law Will, contract Precedent/judgment Representing the secondary reality The legal process is one whereby an attempt is made

to decide about: 1. a representation of the secondary reality 2. the fit between the secondary reality and the legal representation (e.g. in a criminal case to see whether the secondary reality is legally permissible or not); 3. the degree of any difference between the secondary reality and legal theory, to determine punishment or compensation Representing the secondary

reality The secondary reality removed in space and time so it must be reconstructed on the basis of evidence In the adversarial system two conflicting accounts of the secondary reality Another challenge to establish the meaning of legislation: interpretation Means of representing the secondary reality

Non-linguistic means: photographs, diagrams, material evidence The most important genres used in reconstruction of the secondary reality: the narrative Narrative: the choice of words Example Mr Cochran: Im talking about the label of this evidence, and I just think its approproate to call it a blood trail. So I am asking the court when I saw this

last night, we werent on the record or whatever. So now is the time. She hadnt put it out. Now is the time. Im just saying we should if she wants to call it blood at Bundy, I have no objection. I object to the use of the word trail (The Simpson Trial Transcripts, Feb. 9th 1995) Comment Counsel for the prosecution argued that the word trail is simply descriptive

Defence lawyer, Mr Cochran, did not agree: five drops of blood. That does not make a trail among most reasonable experts The word trail sth substantial and directional The use of one word instead of another can have persuasive effects Choice of words expresses and ideological position Ideologies carry with them beliefs and values Careful selection of a word can invoke a whole arguement and point of view

Narrative Lexical choices a lexical landscape constructed by a lawyer that both frames the witness testimony and has persuasive effect Such choices help make an argument, persuade a jury or suggest that events the witness describes never actually happened Activity Brenda Danet examined the lexical choices in a trial

where a doctor was being tried for manslaughter because of late-stage abortion he performed. What kind of lexical choices might the prosecution and defence make in such a case? Comment The choice of one word over another can have significant effects in a narrative For these to have their effect, the narrative needs to be well structured, so that events make sense in

relation to each other Narrative structure 1. Abstract (what the story is about) 2. Orientation (where, when, who) 3. Event 4. Complication (the main event) 5. Evaluation (assessment of events) 6. Resolution (what happened in the end) 7. Coda (bridges the gap between the story and

communicative context where it takes place) (Labov 1972) Context Attention needs to be paid not only to the narrative structure but also to the conrext in which the narrative takes place Narratives need to have a point The point in courtroom narrative relates to the argument the lawyer is making

Narrative in the courtroom A narrative has to be plausible if it is going to have any persuasive effect The narrative is not told by a single speaker; it has to be constructed through the routine of question and answer Summary Narratives have a structure

Narratives can be analyzed in terms of: What is included and what is not The ordering of events The detail of representation Narratives in pieces Witnesses have limited speaking rights in the courtroom Whether a narrative is told, and how it is told, depends on the lawyers questions

The modified structure: 1) orientation, 2) core narrative, 3) elaboration Elaboration The point of the narrative; addressed to the jury; provides further details, clarification, explication of the core narrative

The details provided by witnesses may be the most important contribution a witness can make for 2 reasons: 1) narratives told in court will be assessed in relation to the details of narratives from other witnesses and other available evidence 2) details provided by a witness can help assess if the narrative is credible Narratives in the courtroom Question and answer format of proceedings

The task of the lawyer in direct examination to construct or elicit a narrative, the cross-examining lawyer has 2 choices: 1)he can construct an alternative narrative or 2) undermine the plausibility of the narrative that was given in direct examination Summary Narratives provided by witnesses are usually fragmented

Narratives may actually be authored by the lawyer Narratives in the courtroom need to have a point The instructive narrative Before the jury are allowed to deliberate, each side will tell and overarching story: one that takes into account all the narratives and details elicited during the trial: closing statements The judge sums up, taking into account the narratives and details produced during the trial by each side in the case: all the details and events about which witnesses have testified are knitted

together into a single, albeit complex, narrative which should be unbiased The jury have to decide which narrative is more convincing in the light of the physical evidence and everything they have heard The jury the author of the final narrative, which is indicated by their verdict The instructive narrative The judge instructs the jury about the relevant law Judicial instructions need to be accurate and

comprehensible Research has shown that jury comprehension is not always high The judges task is to translate the language of the law for the lay jury without including elements that should not be there or omitting features which should be Judicial instructions about the law better understood when conveyed in the narrative mode

The narrative mode a way of encoding subjectivity, the nature of human reality, experience, beliefs and emotions Refers to the particular, the personal, what has happened Tends to be oral The paradigmatic mode Deals withe the general and the abstract Concerned with rationality, the observation and

analysis of physical reality Pays attention to categories, logic, universality, what is generalisable and what is true Written mode Context-free Concerned with verifiability rather than versimilitude Example 22. Handling stolen goods (1) A person handles stolen goods if (otherwise than in

the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so. (2) A person guilty of handling stolen goods shall on conviction on indictment be liable to imprisonment for a term not exceeding fourteen years (Theft Act 1968, s. 22)

Activity Analyse the language of section 22, paying attention to nominalisation and syntactic structure. Think about how best to explain the offence to someone else. It might help to construct a narrative about a particular person to convey the meaning of this section Comment Paradigmatic mode: sytactic structure, disjunctions (or)

the main clause followed by conditional structure with a long and complex suordinate clauses Actions abstract; not situated in time and space Mens rea, actus reus Taking all the possible actions and states of mind into account and mapping them out in a simple statement would take some time because of all the possible factual scenarios the section is designed to cover Example: a recorder instructing a

jury Let me just move on then to the offence of handling, because you need to consider the definition of that. This is a bit more complicated and I will go through it more slowly with you. (I have to find the right page.) A person handled stolen goods if otherwise than in the course of stealing, knowing or believing them to be stolen, he dishonestly received them. Now, that is the offence which is handling here

Comment Many features of the paradigmatic mode No reference to a particular person or to particular goods Narrative mode: Example If for example you were standing in Marks and Spencers and you watched a shoplifter steal and then ten minutes later you took the goods from the shoplifter you would receive them knowing that they

were stolen. If, on the other hand, you were not in Marks and Spencers when the shoplifter stole that elegant hat and you were outside in the Crown and Robe and somebody came up to you and said, Look what I have just nicked from Marks and Spencers, you do not have direct knwledge of it but you have the belief based on what you have been told. So that is the distinction if I can put it that way. Comment

Narrative mode Examples used to explain the concept of handling stolen goods Less condensed, less abstract and easier to process Summary Directions about the law should be comprehensible Reliance on written texts may not be conductive to jury coprehension The narrative mode is better suited to instructing

juries about the law Judgment as story The judges decision needs to be supported by reasons, outlining the application of the law to the facts Narrative plot v. narrative discourse Narrative plot - describes events as they happened in

the order that they happened; a neutral description of events Narrative discourse the way in which the narrative plot is conveyed, including the way characters are named, the terms in which events are described and the order in which the events are given Story in and of the trial Considering the whole trial from the outside During a trial, narratives are told in the courtroom

The trial itself can become the topic of a narrative the story in the trial v. the story of the trial What a trial means may become important to people not directly involved While trials clearly have legal significance, they also have cultural meanings Summary There is a story in the trial and a story of the trial The story in the trial can be found in evidence,

argument and judgments The story of the trial is often better known than the stroy in the trial The story of the trial often connects with existing norms, beliefs and ideologies Conclusion Narratives important in a legal context They may be fragmented and constrained, but they are nevertheless present in the questioning of witnesses, the

instruction of juries and the decisions of judges The narratives in the courtroom do not always stay there The concept of the stroy of the trial shows that legal narratives depend on and influence the eliefs and ideas that circulate in the wider world The story of the trial makes clear the connection the law has with the everyday world Narrative structure Orientation and the coda boundary units which

frame the story but do not form of the event sequence or the story itself The other parts of the story usually in a chronological order (in court or police investigations this may be intentionally disrupted to destabilize the witness by breaking up the narrative structure used as a memory framework) Narrative structure Orientation and the coda boundary units which

frame the story but do not form of the event sequence or the story itself The other parts of the story usually in a chronological order (in court or police investigations this may be intentionally disrupted to destabilize the witness by breaking up the narrative structure used as a memory framework) Naratives in the courtroom Narratives common in the testimony of witnesses

who present their account of the events Two master narratives (Prosecution/Plaintiff case followed by the Defence case) The master narrative built piece by piece from a range of evidence Only in the two counsels closing statements or arguments that all the narratives are woven into the two master narratives Legal narratives

Assigning responsibility for events to particular participants a central concern of legal narratives The core of the legal narrative the complication, which may constitute the issue tha is being adjudicated (e.g. a breach of contract) Audience design in the courtroom Based on the knowledge and beliefs, the schemas of the audience

A good narrative uses such schemas, involving them to make the narrative intelligible to the audience, The use of rhetorical effects to engage the audience A primary audience: the judge and the jury A secondary audience: the press and courtroom spectators A universal audience consisting of all reasonable people Evaluations of narrative

The jury make their decision on the basis of whose story is most convincing in terms of completeness, consistency and credibility If witnesses come from a culture with a different narrative tradition, their story telling may produce confusion and lead the hearers to assume that the story is illogical If the audience does not share the schemas needed to understand the story, this may render a story less convincing or less intelligible the risk to witnesses

from minority cultures Master narratives interacting with procedural genres The trial is staged as a micro-genre, which itself has some characteristics of a narrative The law in practice cannot be reduced to a single narrative level, but rather should be conceived in terms of a multiplicity of narrative/discursive structures

Jury trial proceedings Opening statement Appearance Final argument Judges suming-up and instructions to the jury Decision: 1) verdict, 2) sentence Opening statement sets the theme by outlining the plot, describing the

characters, depicting the setting, attributing the motives and portraying the action of the story A macro orientation stage Blame can be openly assigned (or denied) or else it may be implied Appearance In each witness appearance, the counsel is trying to elicit all or part of the desired master story The hostile cross-examination attempts to challenge

and discredit the testimony; Counsel will often use confirmation questions containing counsels alternative version of events, attempting to get the witnesses agreement Appearances the main basis for the competing constructions Final argument The defence and prosecution attempt to construct a master narrative which contains or explains all

evidence presented during the trial in a coherent way Judges summing up and instructions Judges directions to the jury will often provide some form of summary of the master narratives, highlighting the areas where the master narratives differ, instructing the jury as to the validity of the evidence within the rules of procedure and discussing the fit between the master narratives and the law.

The judge assesses both the constructions of the primary reality and the fit of these to both elements of the legal framework Decision Verdict: guilty or not guilty Sentence The report summary The written judgment produced after the case a

genre of its own It contains a summary which may have narrative characteristics Linguistic complexity and power one of the social resources on which power and dominance are based is the privileged access to discourse and communication (Van Dijk 1993) Legal texts can be made more accessible without

sacrificing legal exactness Language and disadvantage before the law People with a lower level of education Children Dialect speakers Illiterate people Second language speakers People who are deaf/mute

People with a low IQ Negative social attitudes, prejudice Language and disadvantage before the law Law has the potential to be a mechanism of oppression and persecution, rather than a means of achieving justice Providing the same treatment does not equate with providing just treatment (e.g. treating a second

language speaker in the same way as native speakers) Just treatment not the same treatment, but rather recognizing difference, and developing measures to cope with these differences Children Reliability of childrens testimony similar to that of adults if they are questioned in a way that helps them produce their own version of events) Children may be more suggestible

The problem of interpersonal power and coercion; children may be frightened into silence (e.g. sexual abuse cases) Yes-no questions, tag questions coercive Extreme syntactic complexity a lack of understanding Read the following questions addressed to children in court and rephrase them to make them less confusing A) So, you told us that you dont remember, do you remember

saying that a moment ago? (to 10 year old) B) How far was the trampoline from you when you were first helped on the bike by Mr Brown? (to 7 year old) C) Well I know, I understand what you say you have been talking to her today, but you see what I am asking you is this, that statement suggests that you said those things which you now say are wrong to the police. Did you say it to the police, or did you not? (to 9 year old) D) Now you had a bruise, did you not, near one of your breasts, do you remember this? (to 11 year old) E) But do you recall going to the hospital and will you tell us why you

went to the hospital? (to child aged between 4 and 6) Discussion Some people think that children should not have to answer questions in court. What do you think? Consider the situation in which a serious crime has been committed and the only witness is a child. How would an ideal justice system approach the childs evidence in this case?

Indigenous minorities Aborigines different attitude to knowledge; secret knowledge is not shared; questioning in Aboriginal societies done with great caution; direct questioning rude and intrusive; answering is not obligatory; the clash with police questioning and courtroom cross-examination Aboriginal culture no measurement expressions, esp. regarding time; e.g. a date is referred to by a significant event, not by a calender date Sequences of narrative different; Aborigines do not organize their information in conformity with western logic and are viewed as

incoherent Aborigines prone to saying yes to everything to avoid pressure and questioning Second language speakers Communication problems remedy: legal translation and interpreting Evidence of communication problems: responding with an apology, a clarification request, absence of response, inappropriate response

The deaf There is no signed legal system low levels of literacy Characteristics of legal language technicality, writeness and power - cause severe communication problems A signer who is handcuffed cannot communicate Social class

Lower level of command of High Register Social stereotyping contributes to unequal treatment Women in sexual assault cases Women traumatized by the style of questioning in court Often power language features intended to pressure witnesses into an account of events with which they are not in full agreement

The invasion of a womans personal life (questions about previous sexual experience) Judges bias in favour of male defendants Legal communication problems 1) conceptual content 2) coercion 3) trauma

Measures to reduce communication problems 1) Information (training of lawyers) 2) Mediation (by people who understand both sides e.g. the Aboriginal Legal Services, child councellors, mediators in cases of sexual assault) 3) Modifying legal procedures (e.g. guidelines on formulating questions and ensuring comprehension; admission of video-taped interviews with young children)

Legal interpreting and translation International and national legislation on the right to translation and interpretaton Interpreters needed not only for people with no command of a language, but also those with a limited command Courts, police stations, prisons Reluctance to use interpreters and translators

Problems 1) availability of interpreters/translators (lesser-used languages) 2) quality (training, pay, career structure) Legal translation The issue of technicality The legal concepts and terms in two legal systems may be different lack of equivalence or partial

equivalence Complex cognitive structure manifested in complex discourse structure and extreme syntactic complexity Extreme precision demanded by legal texts, the need to defend against hostile interpretation; the changes required by linguistic differences can lead to legal problems Court interpreting Difficulties: the need to provide a speedy delivery; the

legal worlds ignorance of the complexity of the translation process; gaps in the interpreters knowledge of the law, of courtroom discourse conventions and of the laws assumptions of relevance Interpreters expected to render a perfectly accurate version of all that transpires in a case without being afforded the conditions to perform in such a manner (judges impatient with interpreters who ask for clarification) Interpreters often keep equivalence of propositional

content, but not of social meaning Law on language Language policy and planning Language rights Language crimes Language rights Linguistic minorities: prevention of discrimination, right to use their language in education, the media

and public administration Right to silence A Common Law right: rule against self-incrimination; the primary protection for those least able to protect themselves against coercive questioning: the weaker, the less educated, the intellectually impaired Language crimes Offering/accepting a bribe

Threats Extortion Perjury Conspiracy Soliciting an illegal act Using offensive language Defamation: slander and libel Hate speech (racist language): Can hate language lead to hate action?

Linguistic evidence: forensic linguistics 1) evidence on communication 2) evidence on authorship Forensic evidence: linguistic levels Phonetics Lexis Morphology

syntax Discourse Register Genre Sociolinguistic variation The ethics and admissibility of linguistic evidence Expertise: Validity: can the linguist offer information that is

relevant and precisely targeted at a disputed issue? Reliability: is the information based on scientific methods that can be trusted? Evidence on communication Difficulty of understanding legal language Linguistic disadvantage before the law Language proficiency of second language speakers Evidence on language crimes

Evidence on communication Elements of communication: 1) linguistic form 2) communicative situation 3) knowledge of participants Miscommunication: poor linguistic construction, wordings inappropriate to context, differences between the knowledge base Effective communication choosing the best wording to communicate an intended meaning to a particular

participant in a particular context Communication cases Examining the wording: sounds, words, grammar, discourse and their interaction with the social context Analysis of linguistic complexity Analysis of interaction (CA) for discoursal evidence such as inappropriate responses which can indicate communication breakdown Analysis of meanings

Language proficiency of participants Evidence on authorship Text written or spoken, of varying length The basic methodology to obtain comparison texts produced by the imputed author, and compare them with the questioned text for similarities and differences It is easier to demonstrate that a person did not produce a text

Positive identification - probabilistic Forensic phonetics Identificatory features: Fundamental frequency (pitch) Articulation any idiosyncracies in vowels/consonants? Voice quality (creaky, breathy, squeaky, etc. Prosody Timing: fast, slow Intonation patterns

Intensity: how loud Dialect/sociolect Speech impediments (e.g. defective r) Idiosyncratic pronunciations Unusual use of stress Speaker identification 1) ear identification (earwitnessing) 2) machine identification (spectrograms voice prints)

Sources of degradation in the message The microphone Amplifier Recording head Recording medium Playback head Noise Multiple voices

Filtering produced by telephones Acoustic properties of the situation where the recording takes place Writing Handwriting, typeface, width of margins Spelling, punctuation Plagiarism Concordancing programs revealing the degree of

lexical overlap between texts Author profiling Speech may give indicators of a persons age, sex, social class, level of education, regional origins, profession

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